9 F. 754 -

9 F1d 754

Case Text

The statute of Georgia (Code of 1873, § 1783) is as follows:
"The wife i8 a feme sole as to her1separate estate, unless controlled by the settlement. Every restriction upon her power in it must be complied with; but while the wife may contract, she cannot bind her separate estate by any contract of 8UI1"etyship, nor by any assumption· of thefkbts of her· lmsband; and any sale of her separate state, made to a creditor of .her husband in extinguishment of his debts, shall be absolutely void."

Under if this draft was made to pay a debt of defendant's husband, the draft is not. merely voidable, but void. It is a contract inhibited by the of this state. It was contended for the plaintiffs that the defendant was estopped from denying the l'ecital therein, that it was furnished her to make her crops, etc., as against bona fide holders of the paper. If the contract were not void under the statute cited the court might so hold, but in view of the construction now adopted of that statute, the court is compelled to decide that defendant may offer evidence of the consideration as alleged in the plea. This being a Georgia contract must be governed by the law 6fGeorgia; and the consequences above stated result from the provision of the case. The court will· admit the evidence and submit the disputed questions onact to the jury.

In re CARY, Bankrupt.

(District Uourt, S, D. New York.

1. December 30,1881.)

DEPOBITIONs-l:'lIGNATURE-STENOGRAPHEn'S NOTES.

Upon an order of reference to a register in bankruptcy to take proofs, the depositions of witnesses taken by a stenographer, before a register, and afterwards reduced to long-hand, will be suppressed if not read to and signed by the witness, according to general ordcr 10, after they are written out, though the witness' subsequent attendance for that purpose could not be procured. The reference in section 5003 to the practice inequity is controlled by general order No. 10, adopted by section 4990.

In Bankruptcy. Henry G. Beach, for bankrupt. Philo Chase, for creditors. D. J. Upon a petition of the bankrupt for an order direct· ing that certain persons be punished for contempt in disobeying a prior order of this· court, an order of reference was made to the register to report the facts pertaining to the alleged contempt. A great mass of .testimony is submitted, annexed to the registElr'a report,

IN BE CARY.

755

among which is that of Henry E. Hopkins, a witness called by the bankrupt, examined on his behalf, and also cross.examined. The deposition of Hopkins, as appears by additional affidavits submitted in respect thereto, was first taken by a stenographer, who furnished to the counsel for the bankrl1pt, "some considerable time af,terwards," a long-hand copy of his notes of the testimony; and counsel thereupon endeavored to obtain the further attendance of the witness for the purpose of having this transcript of the notes read over and subscribed by the witness in the presence of the register, but the witness could not then be found, having, as it is alleged, left the state, and his whereabouts being unknown; The stenographer submits an affidavit that the long-hand copy is a correct transcript of the notes taken by him, and the register certifies that the witness was Bworn, examined, and cross.examined before him. Counsel for the respondent now moves, before the hearing of the order to show cause upon the referee's report,for an order, in effect, suppressing the testimony of· Hopkins, on the ground that it has never been read to or subscribed by hini. Section 5003 of the Revised Statutes prescribes that testimony is to be given "in the same manner as in suits in equity in the circuit court." Section 5006 authorizes the court to punish a witness for contempt "for refusing or declining to swear to or sign his examination." General order No. 10 provides that witnesses "shall be subject , to examination and cross-examination, which shall be had in conformitywith the mode now adopted in courts of law;" and that depositions upon such examination "shall be taken down in writing by or under the direction of the register, and, when completed, shall be read over to the witness, and signed by him in the prMence of the register." By section 4990 the then existing general orders of the supreme court were readopted. The mode of giving testimony in suits in equity in the circuit court, referred to in section 5003, is substantiall;y the same as that directed by order No. 10, with a slight variation. The general rule in equity promulgated at the December term, 1861, provides that the depositions taken upon oral examination, "when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend; if the witness shall refuse to sign the deposition,then the examiner shall sign the same." Under this rule the signature of the witness in equity suits in the United States courts is not an indispensable condition W his deposition being received.

756

FEDERAL REPORTER.

In Moulson v. Hargrave, 1 S. & R. 201, unsigned depositions were received, and the court stated that it had been decided by that court, and also by the circuit court of the United States for that district, that the signatures of witnesses were not necessary. But, in such cases, the testimony is taken by the examiner, a sworn officer of the court, and its correctness is authenticated by him. See, also, Mobley v. Hamit, 1 A. K. Marsh. 59U; Rutherford v. Nelson, 1 Hayw. 105; Wiggins v. Pryor, 3 Porter, 430. The practice in the English chancery was settled by the early case of Copeland v.Stanton, 1 P. Wms. 414, where the depositions unsigned, because of the sudden death of the witness, were not admitted, for the reasOn, as the court say, that ".the witness was at liberty to amend or alter anything, after which he signs them, and then, but not before,the examinations are complete and good evidence." See Smith, Ch. Pro 519. If the direct examination is signed, and thus complete, so far as it goes, the loss of opportunity to cross-examine the witness, by his death or other inevitable accident, is not sufficient to exclude the deposition, and it may be received for what it is worth. Nolan V. Shannon, 1 Molloy, 157; Arundel v. Arundel, 1 Chan. 90; Gass V. Stinson, 3 Sumn. 91:t The rule requiring depositions to be read to the witness and subscribed by him, adopted by general order No. 10. which was also a statutory requirement in the chancery practice of this state, (2 Rev. St. *181, § 89,) was manifestly intended to secure accuracy and prevent mistakes and abuses in testimony taken ont of court. It is not necessary to hold that in every case whatsoever, and without regard to circumstanoes, each of the directions of rule 10 must be inflexibly complied with. The rule does not declare that the testimony shall be rejected in case of a defect in anyone of the prescribed particulars, and circumstances may arise where the literal enforcement of the rule would defeat its real purpose. But the rule must be enforced wherever the failure to procure the signature has arisen from any laches on the part of the parties calling the witness, and when the ordinary guaranties of the correctness of the testimony are wanting. In this case none of those guaranties are supplied. The testimony was not taken by the register or by any officer of the court, nor, 80 far as appears, by any person acting under him. It has not been seen or read by the witness, and its correctness is not certified by the register. and, from the circumstances of the case, necessarily cannot be so certified by him. In legal effect it is nothing more than what the stenographer by his affidavit swears he heard the

HOLMES V. PLAINVILLE MANUF'a CO.

757

witness say; i. e., it is mere hearsay. Mistakes of more or less im" portance constantly occur in the notes of stenographers, even of those who are most experienced and trustworthy; and parties who procure testimony to be taken in this way ought to be held bound to procure its correctness to be authenticated by the signature of the witness, or be preoluded from using it, if objected to. This court, in U. 8. v. Pings, 4: FED. REP. 714, suppressed depositions reduced to writing by the counsel of one party in the absence of the other, on account of the abuses to which such a practice, if sanctioned, would be likely to lead. The allowance of depositions like the present are still more objectionable, and could not be sustained, even if there were no genera,} order applicable to the subject. That there was considerable delay by the stenographer in furnishing to counsel the transcript of his notes is no excuse; nor does the affidavit of the attorney show sufficient endeavors to find the witness, even if entire inability to procure him would have furnished a sufficient reason for admitting the testimony, which I do not think it would. . T,ht;; deposition should, therefore, be suppresse4.

HOLMES

and another v.

SAME

PLAINVILLE MANUF'a

Co.

v.

DUNHAM HOSIERY

Co.

(Circuit Oourt, D. OonnlXticut.

December 16, 1881.)

J. LETTERS PATENT-TAKE-Ups-REIBSUEB-NEW MATTER-INFRINGEMENT.

Reissued letters patent granted to George H. Holmes, June 25, 1878, for an improvement in take-ups for looms, are not invalid because broader than the original, They are not infringed, however. b,- thp machine by the defendant, as motion is not transmitted in the two maWllles by the same or equivalent means.

In Equity.

Charles E. Mitchell, 'for p1aintiffs. Esek Cowen, for defendants.
SHIPMAN, D. J. These two cases are each founded upon reissued letters patent to George H. Holmes, dated June 25, 1878, for an improvement in "take-ups" for looms. The original patent was granted August 10, 1869. The plaintiffs are the owners of the patents. The defences are the invalidity of the reissue, because it contains "new matter" and non-infringement, if the patent is construed by the court to be restricted to the invention as originally claimed. The original patent was for an improved "take-up" in looms for